The California
Labor Code prohibits employers from asking about an arrest or detention that did
not result in a
conviction.

There is an exception for certain arrest records when the applicant is
applying for work at a health care facility and would have
access to
patients, drugs or medication.

A California
employer could arguably be committing a criminal act and face misdemeanor
criminal charges if it utilized the FBI
database and discovered that an applicant
was arrested in a case that is not either pending or resulted in a
conviction, or that the
applicant engaged in certain pre-trial or
post-trail diversion programs. That is because by statute, California is a "no-arrest"
state
when it comes to employment. According to
California Labor code section 432.7:

(a) No employer, whether a public agency
or private individual or corporation, shall ask an
applicant for employment to disclose, through any
written form or verbally,
information concerning an arrest or detention
that did not result in conviction, or information
concerning a referral to, and participation in,
any pretrial or post trial diversion program,
nor shall any employer seek from any source
whatsoever, or utilize, as a factor in
determining any condition of employment including
hiring, promotion, termination, or any
apprenticeship training program or any other
training program leading to employment, any record
of arrest or detention that did not result in
conviction, or any record regarding a referral to,
and participation in, any pretrial or post trial
diversion program. As used in this section, a
conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is
imposed by the court. Nothing in this section
shall prevent an employer from asking an employee
or applicant for employment about an arrest for
which the employee or applicant is out on bail
or on his or her own recognizance pending trial.

433. Any person violating this article is guilty of a
misdemeanor. (Emphasis added)

Furthermore, California law limits the consideration of any misdemeanor
conviction information in cases where probation has been
successfully
completed or otherwise discharged and the case has been
judicially dismissed when making employment decisions.

Additionally, California law (Labor Code 432.8) also limits the reporting of
convictions for sections 11357 (b) or (c) of the Health &
Safety code, and
11360(b), 11364, 11365, & 11550 H&S, as they relate to
the possession, use, influence, paraphernalia, or presence
during use of
Marijuana, to two (2) years from the date of conviction.

In plain English Labor Code 432.8 is translated to: 11357(b) – Possession
of less than 28.5 grams (1 oz.) of Marijuana, 11357(c) –
Possession of less
than 1 oz. of Marijuana, 11360(c) [it now is
probably 11360(b) as the latest print does not have a (c) subsection]
–
Transportation/Sale of less than 28.5 grams (1 oz.) of Marijuana, 11364 – Possession of Marijuana Pipe,
11356 – Being present in
a place where Marijuana is being smoked, and 11550
– Under the influence of Marijuana.

EMPLOYMENT APPLICATIONS

With respect to
employment applications, Labor Code Section 431, states, “if an employee or
applicant is required to sign an
application for employment, the employer shall file in the office of the
Division of Labor Standards Enforcement a copy of the form

of such
application.

Employers hiring in
California must have specific provisions in their screening forms. Forms
that are used in the other 49 states are
useless in California. Employers also need to
file a certification with a background screening firm that contains unique
California
language. In addition, California
has some of the most restrictive and technical rules in the US when it comes
to locating and utilizing criminal records. In
fact, failure to utilize criminal records correctly can be a misdemeanor
offense.

Taken from article prepared for the October 2002 edition of the
Northern California Human Resources Association (NCHRA) Bulletin Reprinted in HR.com.

1. References: The new law clarifies
that under Civil Code section 1786.53 in-house references
obtained by an employer DO NOT
have to be turned over to applicants. Under AB
1068, an employer would have to turn over any public records, such as
criminal
convictions, that it found on its own, but not reference
checks.

2.
Providing Reports to Applicants:
the law no longer requires employers to provide every background
report to each applicant. Instead,
each applicant will have the ability to check off a box on a disclosure sheet
and have a background-screening firm send the report
directly to the
applicant. A similar rule already exists in California for credit reports.

3.
Special Cover Sheet:
The law revises the rules about a special cover sheet. A screening firm is
allowed to post the required notice on
the first page of the report instead.

4.
Employee Investigations: There
is also language in new section 1786.55 that clarifies that the new law is
not intended to modify
existing law concerning internal
investigations of current employees suspected of
misconduct or wrongdoing (except for obtaining public records) or employer
reference
checking. However, the federal FCRA still applies to investigations by third
parties.

5. Limitations on “do-it-yourself” investigations:
If an employer does their own investigation of an applicant or current
employee
without using the services of a
background-screening provider and collects public
records such as criminal records, there are new rules that are in effect.
Any
information must be turned over to the applicant/employee within seven days unless the
employer suspects misconduct or wrongdoing
in which case supplying the
information may be delayed. In addition, an employer who uses this procedure must provide a form to
all
applicants/employees with a box that, if checked, permits a person to
waive the right to receive the copy of any public record. If the
investigation results in an
adverse action, there are additional requirements as well. This procedure
is only in effect if an employer
does its own investigation.

6. Limitation on Criminal Record Searches:
The new law retains the seven (7) year limitation on a
background-screening firm obtaining
criminal records. However, the new law clarifies that there is an exception
for employers that are required by a governmental agency to
go back
further when checking qualifications. This addresses a conflict between California law and situations
where certain employers
are required to go back further in some cases.

Database description - Contra Costa County
Superior and Municipal records on convicted felony,
misdemeanor, and traffic offenses since 1995. Data may
contain offender name and file date, but does not contain
dates of birth.

Fresno County
Fresno County Court data contains criminal records on over
11,000 individuals. Data can contain Defendant Name, Case
Number, and File Date. This source does not contain dates of
birth.

San Bernadino County
San Bernadino County Court data contains criminal records on
over 760,000 individuals. Data can contain Defendant Name,
Case Number, Statute, and File Date.

San Diego
Data contains Superior Court Indexes for felony and
misdemeanor filings since 1974. Search results may include
defendant name, case number, file date and type of offense,
but does NOT contain DOB. Note: These are filings only, not
dispositions. This source is updated monthly.

Stanislaus County
Data contains Superior and Municipal Court Indexes for
felony and misdemeanor filings. Search results may include
party name, party role, case number, file date and type of
offense, but does NOT contain DOB. Note: These are filings
only, not dispositions.

ContraCostaCounty

Data contains Superior and Municipal records on convicted
felony, misdemeanor and traffic offenses since 1995. Data may contain Offender
Name and File Date, but does not contain Dates of Birth. Data is updated
monthly.

FresnoCounty

Fresno County Court data
contains criminal records dating back to 1997. Data can contain Defendant
Name, Case Number, and File Date. This source does not contain dates of birth.
Data is updated monthly.

Sacramento
County

San BernardinoCounty

San Bernardino County Court
data contains criminal records on over 1 million individuals dating back to
1997. Data can contain Defendant Name, Case Number, Statute, and File Date.
Data is updated monthly.

San DiegoCounty

Data contains Superior Court
Indexes for felony and misdemeanor filings since 1974. Search results may
include Defendant Name, Case Number, File Date and Type of Offense, but does
NOT contain DOB. Note: These are filings only, not dispositions. This source
is updated monthly.

Santa ClaraCounty

Santa CruzCounty

Santa Cruz County Court data
contains criminal records on over 110,000 individuals from 1994-2004. Data can
contain Defendant Name, DOB, Case Number, Charge, and File Date. Updates are
no longer available for this source.

ShastaCounty
- Superior Court

Data contains consists of
felony and misdemeanor case index dating back to 1999. Results may include
Name, Case Number, and Filing Date. Data is updated monthly.

Stanislaus
County

Stanislaus County Data
contains Superior and Municipal
Court Indexes for felony and misdemeanor filings dating back to 1990. Search
results may include Name, Case Number, File Date, and Type of Offense, but
does NOT contain DOB. Note: These are filings only, not dispositions. Data is
updated quarterly.

Ventura
County

P.R.I.O.R.S.

Public Record Indexes of
Record Searches. This database is comprised of proprietary criminal data
compiled from previously ordered county, statewide and federal criminal
requests, from CA, which contained records.

Disclaimer
None of the information in this web site should be construed
as legal advice. All forms policies,
terms, information and procedures should be reviewed by your
legal counsel before being used in any way.